For a conviction based on circumstantial evidence, the prosecution must establish a complete chain of evidence; any missing link proves fatal to the case.

Order :

(AVNEESH JHINGAN, J.)

1. This criminal appeal is filed by Kalyan (hereinafter referred to as ‘appellant’) against judgment and order of conviction and sentence dated 23.01.1996 passed by Additional Sessions Judge No. 1, Jaipur City, Jaipur in Sessions Case No. 56/1995 (arising out of FIR No.647/1994 lodged at Police Station Sodala, Jaipur for the offence under Section 302 IPC).

2. The deceased as per routine did not turn back from work on 19.12.1994 and his dead body was found on 20.12.1994 lying in front of Ashoka Company, Jamna Nagar, Sodala. The body was identified as of Lal Chand Mehra (hereinafter referred to as ‘deceased’) by PW-1 Jai Kishan brother of deceased and the FIR was registered against unknown persons. During investigation, Mittu @ Kailash and the appellant were nominated as accused and charge-sheet was filed. The charges framed against accused- respondent were denied and trial was claimed. Prosecution produced eighteen witnesses and exhibited thirty one documents. Statement of accused-respondent was recorded under Section 313 Cr.P.C. The trial court vide judgment and order dated 23.01.1996 convicted the appellant under Section 302 IPC. Vide order of even date, the appellant was sentenced to undergo life imprisonment and to pay fine of Rs.200/-. In case of default of payment of fine, to undergo imprisonment for one month. Hence, this criminal appeal.

3. Learned counsel for the appellant submits that out of four witnesses relied upon by the prosecution to prove last seen theory, two turned hostile and third one has not named the appellant. The contention is that the recovery made at the instance of the appellant was not co-related to the death of the deceased. The argument is that there were variations in the statements given by PW-5 Mohan @ Manohar and PW-12 Ganesh Narain Mehra. It is argued that PW-2 to PW-5 stated to have seen appellant with Lala and it was not proved by prosecution that the deceased Lal Chand Mehra was known as Lala.

4. Learned Public Prosecutor submits that the deceased had suffered nineteen injuries and the blood stain on the shirt of the deceased was of blood group ‘B’. The contention is that PW-5 Mohan @ Manohar deposed to have seen the appellant along-with the deceased on 19.12.1994.

5. Heard counsel for the parties and perused the record with their able assistance.

6. The law is well settled that for conviction on the basis of circumstantial evidence the chain should be complete and a missing link shall prove fatal to the case of prosecution. Reference be made to the decision of Supreme Court Sharad Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116, wherein it was held:

“152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra 1973CriLJ1783 where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable